There are a few privacies, if any, that are more intimate and sacred than the physical privacy of one’s body, especially when it comes to the genetic make-up of an individual. In recent history, the practice of genetic testing within the workplace has become more and more prevalent and one can only expect that trend to increase (Persson and Hansson, 2003). However, this rise of genetic testing within the workplace has become quite a controversial topic as is witnessed in the recent case involving The Burlington Northern and Santa Fe Railway Company (BNSF).

The case began when a 45-year-old track-maintenance worker applied for compensation after developing what he said was carpal tunnel syndrome (Schafer, 2001). After receiving claims from this and nearly 125 other workers for carpal tunnel syndrome related injuries, BNSF began initiating DNA tests to test for a specific genetic marker among its employees, many without their consent, that might indicate a predisposal to some form of carpal tunnel syndrome (www. bnsf. com, 2001 and 2002).

However, when the U. S. Equal Employment Opportunity Commission (EEOC) caught wind of the genetic testing taking place at BNSF, they filed a lawsuit alleging that BNSF may have violated the Americans with Disabilities Act of 1990 (ADA) by genetically testing or seeking to test 36 of its employees without their knowledge or consent (www. bnsf. com, 2002). In early 2002, BNSF and the EEOC came to a settlement and BNSF agreed to pay up to $2. 2 million to the employees involved (Lewin, 2002).

Now many will argue that this settlement was fair on behalf of all parties involved. However, when looking at the facts and the ethical and moral issues of the case, it is apparent that the settlement at BNSF was not fair. In order to fully understand why the settlement at BNSF was not fair, one must consider the utilitarian aspects of the case. The first and probably most obvious utilitarian argument of the case is that BNSF’s decision to genetically test its employees is not for the greater good of the employees.

Though BNSF asserts that the results of the genetic tests neither had nor ever would have any bearing on an employee’s employment status, there still is no absolute guarantee that no ill repercussion would result from a DNA test. Persson and Hansson illustrate this point well in their article, Privacy at Work-Ethical Criteria. In this article, the authors explain that it is cheaper to simply fire or not hire a worker who is at a genetic risk opposed to adjusting the working conditions and or relocating workers so that they will be less hazardous to the worker (Persson and Hansson, 2003).

Naturally, if this possibility were to become reality, it would definitely affect not only a worker’s livelihood, but also that of his/her family. Additionally, with genetic testing there is a risk that employees can be singled out based on the results of their genetic status and this exclusion can have similar effects as if one were to be excluded because of his/her race, gender, religion, or age (Persson and Hansson, 2003). Again, none of these situations arose at BNSF, but what if several if not all of the employees tested were diagnosed with a genetic predisposition for carpal tunnel syndrome (CTS)?

Who’s to say the situation wouldn’t have changed? Though this is a convincing argument against BNSF’s use of genetic testing and justification of the settlement, the second utilitarian consideration presents a more compelling argument. The second utilitarian aspect of the case is that the greater good of the company is at stake and warrants the intrusion of its employees’ genetic privacy. Anytime an employee gets injured at work, it can cost the company a lot of money, not only in workers compensation, but also in insurance costs.

In regards to the BNSF case, if one contemplates the fact that almost 125 employees made CTS injury claims, one can see how the dollars in insurance expenses can pile up easy, especially if the number of claims continues to rise. Furthermore, BNSF is now stuck having to either relocate 125 workers to new positions within the company or do without them until they recover, which of course leaves a huge void in its work force. Naturally another alternative would be for BNSF to hire and train new workers to fill the void left by the injured workers.

However, this, similar to the insurance costs, can get very expensive for BNSF and could ultimately mean the downfall of the company. Therefore genetic testing is a preservation tool that can be used to assess whether an employee or group of employees is at risk for a particular condition that could be detrimental to a company, i. e. CTS. Because BNSF interests in genetic testing were for the overall good and survival of the company it is unfair that they had to pay such a steep settlement for intruding upon the rights of its employees.

In addition to the utilitarian considerations, other equally important aspects to explore are the deontological issues of the case. The first deontological issue is that BNSF’s employees had the right to the physical privacy of their genetic information. Additionally, they had the right to be informed by BNSF that their DNA was being tested for genetic markers for CTS. Naturally, BNSF had a duty to its employees to inform them of the genetic test, which admittedly BNSF didn’t do and that could definitely justify the settlement, which BNSF had to pay out to its employees.

However, there are other deontological perspectives that give moral cause to BNSF’s genetic testing of its employees and thereby provide reason that the settlement at BNSF was not fair. The first of these deontological perspectives is that by virtue of a contractual agreement, BNSF had a duty to provide a safe work place. Similarly, the workers at BNSF had a right to be safe at work. As such, BNSF had within its charge to do all it could to ensure the safety of its employees within the workplace, even if it meant intruding upon the privacy of its employees.

According to Persson and Hansson, an employer is morally justified in intruding upon an employee’s privacy, i. e. genetic testing, if it is in the best interest of the employee (Persson and Hansson, 2003). Therefore, one can argue that in the case at BNSF, genetic testing was used to identify and warn employees with the genetic disposition for CTS to avoid those jobs that may trigger an adverse condition or cause them to incur such an injury in an effort to protect them from injury (French, 2002).

Additionally, BNSF did this at no repercussion to the employee, i. e. no one was fired or prevented from receiving insurance benefits no matter what the results of the genetic tests revealed. This standard of care that BNSF showed toward its works in caring for their safety and interests gives further reason why the settlement at BNSF was not fair. The final deontological issue surrounding this case is that BNSF possessed a duty to protect third party interest groups.

For example, not only was BNSF responsible for the safety and security of its own employees, but it was also responsible for the safety of the customers that ride the trains and to all those who my live next to the train tracks or the railway yard. As a result, BNSF is accountable for any harm that may come to a railway passenger or neighbor. Therefore, it is the duty and due diligence of the employer, in this case BNSF, to ensure that its employees are able to perform their jobs in a safe manner.

So how does one ascertain that his/her employees are fit for the job and that they don’t possess attributes that may be detrimental not only to the company, their safety, but also the safety of others? One way is through genetic testing. Once more, genetic testing provides an employer the ability to identify if a worker carries a particular genetic disposition toward a condition that could create an unsafe environment not only for himself but for everyone around him. This could greatly assist employers in matching up the right employees to the right jobs and all the while ensuring that good safe work practices are being implemented.

Naturally, this requires an employee to give up an element of his/her right to privacy, but the moral obligation that The Burlington Northern Santa Fe Railway possesses to its neighbors and to any customers that may ride the trains that travel the tracks BNSF works on outweighs the moral obligation that BNSF has to protect the privacy rights of its employees (Persson and Hansson, 2003). Therefore, BNSF’s diligence and moral fortitude to meet the obligation that it possesses to interested third party groups illustrates clearly that the settlement of $2. million that the company had to pay to its employees was completely unfair. In summary, very little privacy, if any, rivals the physical privacy that one has with his/her body, especially when it pertains to its genetic make-up. Recent history has seen a controversial steady increase of genetic testing within the workplace. A prime example of the controversy surrounding genetic testing exists within the case of BNSF testing its employees for a genetic predisposal to develop CTS.

This came in an effort to address the concerns and claims it received from its employees suffering from CTS. Though BNSF admittedly conducted DNA tests of its employees without their consent, such an intrusion to their privacy was not only for the greater good of the company, but also for the greater good of the employees themselves and the public that they serve. So what did BNSF receive for its efforts for doing its duty to its employees? A big fat settlement of $2. 2 million, made payable to the very employees it was working to help. Is this fair? Absolutely not!

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